delivered the opinion of the Court:
This action was originally commenced before a justice of the peace, to recover the value of stock killed on appellant’s road. The appellee obtained a judgment before the justice, „ and the cause was appealed to the circuit court, where a trial was again had, and resulted as before, in a judgment for appellee.
The road had not been open to use six months prior to the killing of the stock, and it is sought to charge the company on the ground of the negligence of its servants in the conduct of the train. The evidence is very conflicting, and we are unwilling to disturb the verdict of the jury. They have endeavored to reconcile the testimony as well as they could, and after a careful consideration we can not say they have found incorrectly.
The theory of the witnesses for the appellant is, that the colt ran for some distance along the side of the road, and, on approaching a ditch filled with water, it turned and came suddenly on the track, and after it was discovered, it was not possible to stop the train in time to avoid the injury. On the other hand, the evidence given for appellee tends to show the colt ran on the track in front of the advancing train, before it was struck, for a distance of twenty-five or thirty rods, and the track being straight, the engine driver, by the exercise of reasonable diligence, could have discovered it in time to have slackened the speed so as to have avoided the accident. This he did not do.
If the evidence given for appellee shall be regarded as presenting the truth of the case, the jury could properly find as they did, and the judgment must be affirmed.
Judgment affirmed.